USCA Case #13-5368 Document #1501429 Filed: 07/08/2014 ...

JONES DAY

51 LOUISIANA AVENUE NW bull WASHINGTON DC 20001-2113

TELEPHONE (202) 879-3939 bull FACSIMILE (202) 626-1700

ALKHOBAR bull ATLANTA bull BEIJING bull BOSTON bull BRUSSELS bull CHICAGO bull CLEVELAND bull COLUMBUS bull DALLAS bull DUBAI FRANKFURT bull HONG KONG bull HOUSTON bull IRV INE bull JEDDAH bull LONDON bull LOS ANGELES bull MADRID bull MEXICO CITY MILAN bull MOSCOW bull MUNICH bull NEW DELHI bull NEW YORK bull PARIS bull PITTSBURGH bull RIYADH SAN DIEGO bull SAN FRANCISCO bull SHANGHAI bull SILICON VALLEY bull SINGAPORE bull SYDNEY bull TAIPEI bull TOKYO bull WASHINGTON

July 8 2014

Mark Langer Clerk United States Court of Appeals for the District of Columbia Circuit 333 Constitution Ave NW Washington DC 20001 Filed via CMECF Re No 13-5368 Priests for Life v US Deprsquot of Health amp Human Servs No 13-5371 Roman Catholic Archbishop of Washington v Sebelius Rule 28(j) letter Dear Mr Langer In Wheaton College v Burwell No 13A1284 (July 3 2014) the Supreme Court granted an injunction pending appeal for a religious non-profit organization that was eligible for but objected to complying with the so-called accommodation The three dissenters pointed out that ldquobecause Wheaton is materially indistinguishable from other nonprofits that object to the Governmentrsquos accommodation the issuance of an injunction in this case will presumably entitle hundreds or thousands of other objectors to the same remedyrdquo Order at 16 n6 (Sotomayor J dissenting) The six Justices in the majority did not dispute this characterization Moreover the Wheaton majority did not agree with the dissentrsquos position that forcing an organization to act in violation of its religious beliefs by signing and submitting the self-certification is not a substantial burden on religious exercise See id at 11-12 (Sotomayor J dissenting) (reciting Judge Posnerrsquos inapt military-draft hypothetical) Rather religious groups have good reason to object to the self-certification because as the dissent acknowledged their ldquothird-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certificationrdquo Id at 16 n6 (emphasis added) (citing 26 CFR sect 549815ndash2713A(b)(2) (2013) 29 CFR sect25103ndash16(b)) see also 26 CFR sect 549815ndash2713A(c)(2) The substantial burden is even more apparent here because Appellants have asserted an undisputed sincere religious objection not only to signing and submitting the self-certification but also to offering health plans through an insurance company or third-party administrator authorized to provide contraceptive coverage to students and employees who are ldquoare enrolled in [those] plan[s]rdquo 29 CFR sect 2590715-2713A(d) 45 CFR sect 147131(c)(2)(i)(B) Appellantsrsquo Br at 26-27 The Government has offered no way for Appellants to avoid that religiously impermissible course of action

USCA Case 13-5368 Document 1501429 Filed 07082014 of 21

Page 2

JONES DAY

Sincerely

s Noel J Francisco Noel J Francisco Jones Day 51 Louisiana Avenue NW Washington DC 20001 (202) 879-3939 njfranciscojonesdaycom Attorney for Appellants in Roman Catholic Archbishop of Washington et al

s Robert J Muise Robert J Muise American Freedom Law Center PO Box 131098 Ann Arbor Michigan 48113 (734) 635-3756 rmuiseamericanfreedomlawcenterorg Attorney for Appellants in Priests for Life et al

USCA Case 13-5368 Document 1501429 Filed 07082014 Page 2 of 21

CERTIFICATE OF SERVICE

I hereby certify that on July 8 2014 I filed the foregoing Rule 28(j) Letter with this

Court through the CMECF system which then served it upon all counsel of record

s Noel J Francisco

Noel J Francisco DC Bar No 464752 njfranciscojonesdaycom JONES DAY 51 Louisiana Avenue NW Washington DC 20001 (202) 879-3939


SOTOMAYOR J dissenting

_________________

_________________

1 Cite as 573 U S ____ (2014)

Order in Pending Case

SUPREME COURT OF THE UNITED STATES

No 13A1284

WHEATON COLLEGE v SYLVIA BURWELL SECRETARY OF HEALTH AND HUMAN

SERVICES ET AL

ON APPLICATION FOR INJUNCTION

[July 3 2014]

The application for an injunction having been submittedto JUSTICE KAGAN and by her referred to the Court the Court orders If the applicant informs the Secretary of Health and Human Services in writing that it is a non-profit organization that holds itself out as religious and has religious objections to providing coverage for contra-ceptive services the respondents are enjoined from enforc-ing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review To meet the condition for injunction pending appeal the applicant need not use the form prescribed by the Gov-ernment EBSA Form 700 and need not send copies to health insurance issuers or third-party administrators

The Circuit Courts have divided on whether to enjointhe requirement that religious nonprofit organizations use EBSA Form 700 Such division is a traditional ground for certiorari See S Ct Rule 10(a)

Nothing in this interim order affects the ability of theapplicantrsquos employees and students to obtain without cost the full range of FDA approved contraceptives The Gov-ernment contends that the applicantrsquos health insuranceissuer and third-party administrator are required byfederal law to provide full contraceptive coverage regard-less whether the applicant completes EBSA Form 700


2 WHEATON COLLEGE v BURWELL


The applicant contends by contrast that the obligations ofits health insurance issuer and third-party administrator are dependent on their receipt of notice that the applicantobjects to the contraceptive coverage requirement But the applicant has already notified the Governmentmdashwithout using EBSA Form 700mdashthat it meets the re-quirements for exemption from the contraceptive coverage requirement on religious grounds Nothing in this orderprecludes the Government from relying on this notice to the extent it considers it necessary to facilitate the provi-sion of full contraceptive coverage under the Act

In light of the foregoing this order should not be con-strued as an expression of the Courtrsquos views on the merits

JUSTICE SCALIA concurs in the result

JUSTICE SOTOMAYOR with whom JUSTICE GINSBURG and JUSTICE KAGAN join dissenting

The Patient Protection and Affordable Care Act 124 Stat 119 through its implementing regulations requiresemployer group health insurance plans to cover contracep-tive services without cost sharing Recognizing that peo-ple of religious faith may sincerely oppose the provision ofcontraceptives the Government has created certain excep-tions to this requirement Churches are categorically exempt Any religious nonprofit is also exempt as long asit signs a form certifying that it is a religious nonprofit that objects to the provision of contraceptive services andprovides a copy of that form to its insurance issuer or third-party administrator The form is simple The front asks the applicant to attest to the foregoing representa-tions the back notifies third-party administrators of theirregulatory obligations

The matter before us is an application for an emergency injunction filed by Wheaton College a nonprofit liberalarts college in Illinois There is no dispute that Wheaton is entitled to the religious-nonprofit exemption from the


3 Cite as 573 U S ____ (2014)


contraceptive coverage requirement Wheaton nonethe-less asserts that the exemption itself impermissibly bur-dens Wheatonrsquos free exercise of its religion in violation ofthe Religious Freedom Restoration Act of 1993 (RFRA) 107 Stat 1488 42 U S C sect2000bb et seq on the theorythat its filing of a self-certification form will make it com-plicit in the provision of contraceptives by triggering theobligation for someone else to provide the services to which it objects Wheaton has not stated a viable claim under RFRA Its claim ignores that the provision of con-traceptive coverage is triggered not by its completion of the self-certification form but by federal law

Even assuming that the accommodation somehow bur-dens Wheatonrsquos religious exercise the accommodation ispermissible under RFRA because it is the least restrictivemeans of furthering the Governmentrsquos compelling inter-ests in public health and womenrsquos well-being Indeed justearlier this week in Burwell v Hobby Lobby Stores Inc ante at ___ the Court described the accommodation as ldquoa system that seeks to respect the religious liberty of reli-gious nonprofit corporations while ensuring that the em-ployees of these entities have precisely the same access to all [Food and Drug Administration (FDA)]-approved con-traceptives as employees of companies whose owners have no religious objections to providing such coveragerdquo Ante at 3 And the Court concluded that the accommodation ldquoconstitutes an alternative that achieves all of the Gov-ernmentrsquos aims while providing greater respect for reli-gious libertyrdquo Ibid Those who are bound by our decisions usually believe they can take us at our word Not so to-day After expressly relying on the availability of thereligious-nonprofit accommodation to hold that the contra-ceptive coverage requirement violates RFRA as applied toclosely held for-profit corporations the Court now as thedissent in Hobby Lobby feared it might see ante at 29ndash30 (GINSBURG J dissenting) retreats from that position




That action evinces disregard for even the newest of this Courtrsquos precedents and undermines confidence in this institution

Even if one accepts Wheatonrsquos view that the self-certification procedure violates RFRA that would not justify the Courtrsquos action today The Court grantsWheaton a form of relief as rare as it is extreme an inter-locutory injunction under the All Writs Act 28 U S Csect1651 blocking the operation of a duly enacted law and regulations in a case in which the courts below have not yet adjudicated the merits of the applicantrsquos claims and in which those courts have declined requests for similarinjunctive relief Injunctions of this nature are proper only where ldquothe legal rights at issue are indisputably clearrdquo Turner Broadcasting System Inc v FCC 507 U S 1301 1303 (1993) (Rehnquist C J in chambers) (internal quotation marks omitted) Yet the Court todayorders this extraordinary relief even though no one could credibly claim Wheatonrsquos right to relief is indisputablyclear

The sincerity of Wheatonrsquos deeply held religious beliefsis beyond refute But as a legal matter Wheatonrsquos appli-cation comes nowhere near the high bar necessary towarrant an emergency injunction from this Court For that reason I respectfully dissent

I A

The Affordable Care Act requires certain employergroup health insurance plans to cover a number of preven-tative-health services without cost sharing These services include ldquo[a]ll Food and Drug Administration approved contraceptive methods sterilization procedures and pa-tient education and counseling for all women with repro-ductive capacity as prescribed by a providerrdquo 77 Fed Reg 8725 (2012) (brackets and internal quotation marks


5 Cite as 573 U S ____ (2014)


omitted) As a practical matter the provision ensures thatwomen have access to contraception at no cost beyond their insurance premiums Employers that do not comply with the mandate are subject to civil penalties

Recognizing that some religions disapprove of contra-ceptives the Government has sought to implement the mandate in a manner consistent with the freedom of conscience It has categorically exempted any grouphealth plan of a ldquoreligious employerrdquo as defined by refer-ence to the Tax Code provision governing churches See 45 CFR sect147131(a) httphrsagovwomensguidelines (as visited July 2 2014 and available in Clerk of Courtrsquos casefile) And it has extended a further accommodation to religious nonprofits that do not satisfy the categorical exemption All agree that Wheaton qualifies as a religious nonprofit

To invoke the accommodation and avoid civil penaltiesa religious nonprofit need only file a self-certification formstating (1) that it ldquoopposes providing coverage for some orall of any contraceptive services required to be coveredunder [the regulation] on account of religious objectionsrdquo(2) that it ldquois organized and operates as a nonprofit en-tityrdquo and (3) that it ldquoholds itself out as a religious organiza- tionrdquo sect147131(b) The form is reprinted in an appendix to this opinion Any organization that completes the formand provides a copy to its insurance issuer or third-partyadministrator1 need not ldquocontract arrange pay or refer for contraceptive coveragerdquo to which it objects 78 Fed Reg 39874 (2013) see 29 CFR sect2590715ndash2713A(b)(1) and (c)(1) Instead the insurance issuer or third-party admin-mdashmdashmdashmdashmdashmdash

1 Typically an employer contracts to pay a health insurer to provide coverage the insurer both covers the cost of medical claims and man-ages the process for administering those claims Employers whomaintain self-insured plans cover the cost of claims for medical treat-ment directly Such employers often contract with third-party adminis-trators to administer the claims process




istrator must provide contraceptive coverage for the organ-izationrsquos employees and may not charge the organization any premium or other fee related to those services Theback of the self-certification form reminds third-party administrators that receipt of the form constitutes notice that they must comply with their regulatory obligationsSee Appendix infra

B Rather than availing itself of this simple accommoda-

tion Wheaton filed suit asserting that completing the form and submitting it to its third-party administrator would make it complicit in the provision of contraceptive coverage in violation of its religious beliefs On that basis it sought a preliminary injunction claiming that the law and regulations at issue violate RFRA which provides that the Government may not ldquosubstantially burden apersonrsquos exercise of religionrdquo unless the application of that burden ldquois the least restrictive means of furthering [a]compelling governmental interestrdquo 42 U S C sectsect2000bbndash 1(a) and (b)2

The District Court denied a preliminary injunction onthe ground that the regulations exempting Wheaton from the contraceptive coverage requirement do not substan-tially burden its exercise of religion App to EmergencyApplication for Injunction Pending Appellate Review 1ndash20Under Circuit precedent the court reasoned Wheatonrsquos act of ldquofilling out the form and sending it to the [third-party administrator]rdquo in no way ldquotriggersrdquo coverage of contraception costs Id at 9 (internal quotation marksomitted) The Seventh Circuit in turn denied Wheatonrsquos motion for an injunction pending appeal See Order in No 14ndash2396 (CA7 June 30 2014) In doing so it relied on mdashmdashmdashmdashmdashmdash

2 Wheaton also raised claims under the First Amendment and the Administrative Procedure Act Because it does not press those claimsin this Court as a basis for injunctive relief I do not discuss them


7 Cite as 573 U S ____ (2014)


this Courtrsquos pronouncement in Hobby Lobby ldquothat the accommodation provision (applicable in this case) lsquoconsti-tutes an alternative that achieves all of the Governmentrsquos aims while providing greater respect for religious libertyrsquo rdquo Ibid

Wheaton applied to JUSTICE KAGAN in her capacity asCircuit Justice for the Seventh Circuit for an emergencyinjunction against enforcement of the law and regulationspending resolution of its legal challenge She referred the matter to the Conference which entered a temporary injunction and called for a response from the GovernmentSee ante at ___ After receipt of the Governmentrsquos re-sponse the Court today enters an order granting injunc-tive relief

II A

I disagree strongly with what the Court has done Wheaton asks us to enjoin the enforcement of a duly en-acted law and duly promulgated regulations before thecourts below have passed on the merits of its legal chal-lenge Relief of this nature is extraordinary and reservedfor the rarest of cases With good reason The only sourceof authority for this Court to issue an injunction pendingreview in the lower courts is the All Writs Act which provides that this Court ldquomay issue all writs necessary orappropriate in aid of [its] jurisdictio[n] and agreeable to the usages and principles of lawrdquo 28 U S C sect1651(a) This grant of equitable power is a failsafe ldquoto be used lsquosparingly and only in the most critical and exigent cir-cumstancesrsquo rdquo Ohio Citizens for Responsible Energy Inc v NRC 479 U S 1312 1313 (1986) (SCALIA J in chambers)

Under our precedents ldquo[a]n injunction is appropriateonly if (1) it is necessary or appropriate in aid of our juris-diction and (2) the legal rights at issue are indisputably




clearrdquo Turner Broadcasting System 507 U S at 1303 (brackets internal quotation marks and citations omit-ted)3 To understand how high a bar that second prong isconsider that this Court has previously pointed to differ-ences of opinion among lower courts as proof positive that the standard has not been met See Lux v Rodrigues 561 U S 1306 1308 (2010) (ROBERTS C J in chambers) (observing that ldquothe courts of appeals appear to be reach-ing divergent resultsrdquo respecting the applicantrsquos claim andthat ldquo[a]ccordingly it cannot be said that his right torelief is lsquoindisputably clearrsquo rdquo) Neutral application of thisprinciple would compel the denial of Wheatonrsquos application without any need to examine the merits for two Courts ofAppeals that have addressed similar claims have rejected them See Notre Dame v Sebelius 743 F 3d 547 (CA72014) Michigan Catholic Conference and Catholic Family Services v Burwell ___ F 3d ___ 2014 WL 2596753 (CA6 June 11 2014)4 Remarkably the Court uses division mdashmdashmdashmdashmdashmdash

3 Indeed some of my colleagues who act to grant relief in this casehave themselves emphasized the exceedingly high burden that an applicant must surmount to obtain an interlocutory injunction underthe All Writs Act See Lux v Rodrigues 561 U S 1306 1307 (2010) (ROBERTS C J in chambers) (an applicant must demonstrate that ldquothelegal rights at issue are indisputably clearrdquo in order to obtain suchinjunctive relief) (internal quotation marks omitted) Respect Maine PAC v McKee 562 U S ___ ___ (2010) (unlike a stay of a lower courtrsquosorder a request for an injunction against the enforcement of a law ldquo lsquodoes not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courtsrsquo rdquo)(quoting Ohio Citizens for Responsible Energy Inc v NRC 479 U S 1312 1313 (1986) (SCALIA J in chambers))

4 To be sure two other Courts of Appeals have recently granted tem-porary injunctions similar to the one Wheaton seeks here See Order in Eternal Word Television Network Inc v Secretary U S Dept of Health and Human Services No 14ndash12696ndashCC (CA11 June 30 2014) (granting injunction pending appeal) Order in Diocese of Cheyenne v Burwell No 14ndash8040 (CA10 June 30 2014) (same) Although denyingthe injunction in this case would produce a different outcome the Government could of course move to vacate those injunctions were we


9 Cite as 573 U S ____ (2014)


among the Circuits as a justification for the issuance of its order noting that ldquodivision is a traditional ground for certiorarirdquo Supra at 1 But a petition for writ of certiorari is not before us Rather given the posture of this appli- cationmdashfor an emergency injunction under the All Writs Actmdashdivision of authority is reason not to grant relief

B Wheatonrsquos RFRA claim plainly does not satisfy our

demanding standard for the extraordinary relief it seeksFor one thing the merits of this case are not before this

Court for full review adjudication of the merits is still pending in the District Court So nothing necessitates intervention in order to ldquo lsquoaid our jurisdictionrsquo rdquo Turner Broadcasting System 507 U S at 1301 (alterations omit-ted) over any eventual certiorari petition from a decision rendered below If the Government is allowed to enforce the law either Wheaton will file the self-certification form or it will not Either way there will remain a live contro-versy that this Court could adjudicate after the case isdecided on the merits below And either way if Wheaton is correct in its challenge to the law its rights will bevindicated and it will obtain the relief it seeks

As to the merits Wheatonrsquos claim is likely to fail underany standard let alone the standard that its entitlement to relief be ldquo lsquoindisputably clearrsquo rdquo ibid Wheaton asserts that filing the self-certification form might ultimatelyresult in the provision of contraceptive services to itsemployees thereby burdening its religious exercise And it points out that if it does not file the form it will face civil penalties But it is difficult to understand how these arguments make out a viable RFRA claim

RFRA requires Wheaton to show that the accommoda-

mdashmdashmdashmdashmdashmdash

to deny this one Moreover while uniformity certainly is importantuniform error is not




tion process ldquosubstantially burden[s] [its] exercise of reli-gionrdquo sect2000bbndash1(a) ldquoCongress no doubt meant the modi-fier lsquosubstantiallyrsquo to carry weightrdquo Hobby Lobby 573 U S at ___ (GINSBURG J dissenting) (slip op at 20)Wheaton for religious reasons categorically opposes theprovision of contraceptive services The Government has given it a simple means to opt out of the contraceptive coverage mandatemdashand thus avoid any civil penalties for failing to provide contraceptive servicesmdashand a simplemeans to tell its third-party administrator of its claimed exemption

Yet Wheaton maintains that taking these steps to availitself of the accommodation would substantially burden itsreligious exercise Wheaton is ldquoreligiously opposed toemergency contraceptives because they may act by killing a human embryordquo Emergency Application for InjunctionPending Appellate Review 11 And it ldquobelieves that au-thorizing its [third-party administrator] to provide these drugs in [its] place makes it complicit in grave moral evilrdquo Ibid Wheaton is mistakenmdashnot as a matter of religious faith in which it is undoubtedly sincere but as a matter oflaw Not every sincerely felt ldquoburdenrdquo is a ldquosubstantialrdquo one and it is for courts not litigants to identify which are See Hobby Lobby 573 U S at ___ (GINSBURG J dissenting) (slip op at 21ndash22) Any provision of contra-ceptive coverage by Wheatonrsquos third-party administratorwould not result from any action by Wheaton rather inevery meaningful sense it would result from the relevant law and regulations The law and regulations require in essence that some entity provide contraceptive coverage A religious nonprofitrsquos choice not to be that entity may leave someone else obligated to provide coverage insteadmdashbut the obligation is created by the contraceptive coveragemandate imposed by law not by the religious nonprofitrsquos


11 Cite as 573 U S ____ (2014)


choice to opt out of it5

Let me be absolutely clear I do not doubt that Wheatongenuinely believes that signing the self-certification formis contrary to its religious beliefs But thinking onersquos religious beliefs are substantially burdenedmdashno matter how sincere or genuine that belief may bemdashdoes not makeit so

An analogy used by the Seventh Circuit may help toexplain why Wheatonrsquos complicity theory cannot be legally sound

ldquoSuppose it is wartime there is a draft and a Quakeris called up Many Quakers are pacifists and theirpacifism is a tenet of their religion Suppose the Quaker whorsquos been called up tells the selective service system that hersquos a conscientious objector The selec-tive service officer to whom he makes this pitch ac-cepts the sincerity of his refusal to bear arms and ex-cuses him But as the Quaker leaves the selective service office hersquos told lsquoyou know this means wersquoll have to draft someone in place of yoursquomdashand the Quaker replies indignantly that if the government doesthat it will be violating his religious beliefs Because his religion teaches that no one should bear arms drafting another person in his place would make him responsible for the military activities of his replace-ment and by doing so would substantially burden his own sincere religious beliefs Would this mean that by exempting him the government had forced him to

mdashmdashmdashmdashmdashmdash 5 Wheaton notes that the back of the self-certification form provides

third-party administrators with notice of their regulatory obligationsSee Emergency Application for Injunction Pending Appellate Review 8see also Appendix infra That notice is merely an instruction to third-party administrators it is not a part of any of the representationsrequired on the front of the form No statement to which Wheaton must assent in any way reflects agreement with or endorsement of the notice




lsquotriggerrsquo the drafting of a replacement who was not aconscientious objector and that the Religious Free-dom Restoration Act would require a draft exemption for both the Quaker and his non‐Quaker replace-mentrdquo Notre Dame 743 F 3d at 556

Here similarly the filing of the self-certification form merely indicates to the third-party administrator that areligious nonprofit has chosen to invoke the religiousaccommodation If a religious nonprofit chooses not to payfor contraceptive services it is true that someone else may have a legal obligation to pay for them just as someonemay have to go to war in place of the conscientious objec-tor But the obligation to provide contraceptive services like the obligation to serve in the Armed Forces arises not from the filing of the form but from the underlying law and regulations

It may be that what troubles Wheaton is that it must participate in any process the end result of which might be the provision of contraceptives to its employees But that is far from a substantial burden on its free exercise of religion

Even if one were to conclude that Wheaton meets the substantial burden requirement the Government has shown that application of the burden is ldquothe least restric-tive meansrdquo to further a ldquocompelling governmental inter-estrdquo sect2000bbndash1(b)(2) The contraceptive coverage re-quirement plainly furthers compelling interests in publichealth and womenrsquos well-being See Hobby Lobby ante at 2 (KENNEDY J concurring) And it is the ldquoleast restrictive meansrdquo of furthering those interests Indeed as justifica-tion for its decision in Hobby Lobbymdashissued just thisweekmdashthe very Members of the Court that now vote togrant injunctive relief concluded that the accommodation ldquoconstitutes an alternative that achieves all of the Gov-ernmentrsquos aims while providing greater respect for reli-


13 Cite as 573 U S ____ (2014)


gious libertyrdquo Ante at 3 (majority opinion) see also ante at 4 (ldquoThe effect of the [Dept of Health and Human Ser-vices (HHS)]-created accommodation on the women em-ployed by Hobby Lobby and the other companies involved in these cases would be precisely zero Under that ac-commodation these women would still be entitled to all FDA-approved contraceptives without cost sharingrdquo) ante at 44 (ldquoAt a minimum [the accommodation] does notimpinge on the plaintiffsrsquo religious belief that providing insurance coverage for the contraceptives at issue here violates their religion and it serves HHSrsquos stated interests equally wellrdquo) see also ante at 4 (KENNEDY J concur-ring) (ldquo[I]t is the Courtrsquos understanding that an accommo-dation may be made to the employers without imposition of a whole new program or burden on the Government As the Court makes clear this is not a case where it can be established that it is difficult to accommodate the govern-mentrsquos interest and in fact the mechanism for doing so isalready in placerdquo) Todayrsquos grant of injunctive relief simply does not square with the Courtrsquos reasoning in Hobby Lobby

It should by now be clear just how far the Court hasstrayed in granting Wheaton an interlocutory injunctionagainst the enforcement of the law and regulations beforethe courts below have adjudicated Wheatonrsquos RFRA claimTo warrant an injunction under the All Writs Act the Court must have more than a bare desire to suspend the existing state of affairs Wheatonrsquos entitlement to reliefmust be indisputably clear While Wheatonrsquos religiousconviction is undoubtedly entitled to respect it does notcome close to affording a basis for relief under the law

C The Courtrsquos approach imposes an unwarranted and

unprecedented burden on the Governmentrsquos ability toadminister an important regulatory scheme The Execu-




tive is tasked with enforcing Congressrsquo mandate that preventative care be available to citizens at no cost beyondthat of insurance In providing the accommodation forwhich Wheaton is eligible the Government has done a salutary thing exempt religious organizations from a requirement that might otherwise burden them Wheaton objects however to the minimally burdensome paperwork necessary for the Government to administer this accommodation If the Government cannot require organizations to attest to their views by way of a simpleself-certification form and notify their third-party admin-istrators of their claimed exemption how can it ever iden-tify the organizations eligible for the accommodation and perform the administrative tasks necessary to make the accommodation work The self-certification form is the least intrusive way for the Government to administer theaccommodation All that a religious organization must dois attest to the views that it holds and notify its third-party administrator that it is exempt The Government rightly accepts that attestation at face value it does not question whether an organizationrsquos views are sincere It is not at all clear to me how the Government could adminis-ter the religious nonprofit accommodation if Wheaton were to prevail

The Court has different ideas however Stepping intothe shoes of HHS the Court sets out to craft a new admin-istrative regime Its order grants injunctive relief so long as Wheaton ldquoinforms the Secretary of Health and Human Services in writing that it is a non-profit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive servicesrdquo Supra at 1 And it goes furthermdashldquo[t]o meet the condition for injunc-tion pending appealrdquo the Court continues Wheaton ldquoneed not use the [self-certification] form prescribed by theGovernment and need not send copies to health insur-ance issuers or third-party administratorsrdquo Ibid This


15 Cite as 573 U S ____ (2014)


Court has no business rewriting administrative regula-tions Yet without pause the Court essentially does just that6

It is unclear why the Court goes to the lengths it does torewrite HHSrsquos regulations Presumably the Court intendsto leave to the agency the task of forwarding whatevernotification it receives to the respective insurer or third-party administrator But the Court does not even requirethe religious nonprofit to identify its third-party adminis-trator and it neglects to explain how HHS is to identifythat entity Of course HHS is aware of Wheatonrsquos third-party administrator in this case But what about other cases Does the Court intend for HHS to rely on the filingof lawsuits by every entity claiming an exemption suchthat the identity of the third-party administrator willemerge in the pleadings or in discovery Is HHS to under-take the dauntingmdashif not impossiblemdashtask of creating adatabase that tracks every employerrsquos insurer or third-

mdashmdashmdashmdashmdashmdash 6 This case is crucially unlike Little Sisters of the Poor v Sebelius 571

U S ___ (2014) There the Court issued a comparable order ldquobased onall the circumstances of the caserdquomdashin particular the fact that the applicantsrsquo third-party administrator was a ldquochurch planrdquo that had nolegal obligation or intention to provide contraceptive coverage See Little Sisters of the Poor v Sebelius 2013 WL 6839900 10ndash11 13 (D Colo Dec 27 2013) As a consequence whatever the merits of thatunusual order it did not affect any individualrsquos access to contraceptive coverage Not so here Wheatonrsquos third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification See 26 CFR sect549815ndash2713A(b)(2) (2013) 29CFR sect25103ndash16(b) (2013) Todayrsquos injunction thus risks deprivinghundreds of Wheatonrsquos employees and students of their legal entitle-ment to contraceptive coverage In addition because Wheaton is materially indistinguishable from other nonprofits that object to theGovernmentrsquos accommodation the issuance of an injunction in this casewill presumably entitle hundreds or thousands of other objectors to the same remedy The Court has no reason to think that the administra-tive scheme it foists on the Government today is workable or effectiveon a national scale




party administrator nationwide And putting that asidewhy wouldnrsquot Wheatonrsquos claim be exactly the same under the Courtrsquos newly-fashioned system Either way the end result will be that a third-party administrator will provide contraceptive coverage Surely the Court and Wheaton are not just objecting to the use of one stamp instead of two in order to avail itself of the accommodation

The Courtrsquos actions in this case create unnecessary costsand layers of bureaucracy and they ignore a simple truthThe Government must be allowed to handle the basic tasks of public administration in a manner that comportswith common sense It is not the business of this Court to ensnare itself in the Governmentrsquos ministerial handling ofits affairs in the manner it does here

I have deep respect for religious faith for the important

and selfless work performed by religious organizations and for the values of pluralism protected by RFRA and the Free Exercise Clause But the Courtrsquos grant of an injunc-tion in this case allows Wheatonrsquos beliefs about the effects of its actions to trump the democratic interest in allowingthe Government to enforce the law In granting an injunc-tion concerning this religious nonprofit accommodationthe availability of which served as the premise for the Courtrsquos decision in Hobby Lobby the Court cannot possiblybe applying our longstanding requirement that a partyrsquos entitlement to relief be indisputably clear

Our jurisprudence has over the years drawn a carefulboundary between majoritarian democracy and the rightof every American to practice his or her religion freely We should not use the extraordinary vehicle of an injunc-tion under the All Writs Act to work so fundamental a shift in that boundary Because Wheaton cannot justifythe relief it seeks I would deny its application for aninjunction and I respectfully dissent from the Courtrsquos refusal to do so



17 Cite as 573 U S ____ (2014)

Appendix to opinion of SOTOMAYOR J dissenting

APPENDIX7

mdashmdashmdashmdashmdashmdash 7 Source United States Dept of Labor online at httpwwwdolgov

ebsapdfpreventiveserviceseligibleorganizationcertificationformpdf (as visited July 2 2014 and available in Clerk of Courtrsquos case file)






Certificate of Service

JONES DAY

Sincerely

s Noel J Francisco Noel J Francisco Jones Day 51 Louisiana Avenue NW Washington DC 20001 (202) 879-3939 njfranciscojonesdaycom Attorney for Appellants in Roman Catholic Archbishop of Washington et al

s Robert J Muise Robert J Muise American Freedom Law Center PO Box 131098 Ann Arbor Michigan 48113 (734) 635-3756 rmuiseamericanfreedomlawcenterorg Attorney for Appellants in Priests for Life et al





s Noel J Francisco




_________________

_________________

1 Cite as 573 U S ____ (2014)



No 13A1284


SERVICES ET AL


[July 3 2014]














3 Cite as 573 U S ____ (2014)










I A



5 Cite as 573 U S ____ (2014)















7 Cite as 573 U S ____ (2014)




II A










9 Cite as 573 U S ____ (2014)
















11 Cite as 573 U S ____ (2014)
















13 Cite as 573 U S ____ (2014)












15 Cite as 573 U S ____ (2014)
















17 Cite as 573 U S ____ (2014)


APPENDIX7












s Noel J Francisco




_________________

_________________

1 Cite as 573 U S ____ (2014)



No 13A1284


SERVICES ET AL


[July 3 2014]














3 Cite as 573 U S ____ (2014)










I A



5 Cite as 573 U S ____ (2014)















7 Cite as 573 U S ____ (2014)




II A










9 Cite as 573 U S ____ (2014)
















11 Cite as 573 U S ____ (2014)
















13 Cite as 573 U S ____ (2014)












15 Cite as 573 U S ____ (2014)
















17 Cite as 573 U S ____ (2014)


APPENDIX7










_________________

_________________

1 Cite as 573 U S ____ (2014)



No 13A1284


SERVICES ET AL


[July 3 2014]














3 Cite as 573 U S ____ (2014)










I A



5 Cite as 573 U S ____ (2014)















7 Cite as 573 U S ____ (2014)




II A










9 Cite as 573 U S ____ (2014)
















11 Cite as 573 U S ____ (2014)
















13 Cite as 573 U S ____ (2014)












15 Cite as 573 U S ____ (2014)
















17 Cite as 573 U S ____ (2014)


APPENDIX7


















3 Cite as 573 U S ____ (2014)










I A



5 Cite as 573 U S ____ (2014)















7 Cite as 573 U S ____ (2014)




II A










9 Cite as 573 U S ____ (2014)
















11 Cite as 573 U S ____ (2014)
















13 Cite as 573 U S ____ (2014)












15 Cite as 573 U S ____ (2014)
















17 Cite as 573 U S ____ (2014)


APPENDIX7














I A



5 Cite as 573 U S ____ (2014)















7 Cite as 573 U S ____ (2014)




II A










9 Cite as 573 U S ____ (2014)
















11 Cite as 573 U S ____ (2014)
















13 Cite as 573 U S ____ (2014)












15 Cite as 573 U S ____ (2014)
















17 Cite as 573 U S ____ (2014)


APPENDIX7









5 Cite as 573 U S ____ (2014)















7 Cite as 573 U S ____ (2014)




II A










9 Cite as 573 U S ____ (2014)
















11 Cite as 573 U S ____ (2014)
















13 Cite as 573 U S ____ (2014)












15 Cite as 573 U S ____ (2014)
















17 Cite as 573 U S ____ (2014)


APPENDIX7

















7 Cite as 573 U S ____ (2014)




II A










9 Cite as 573 U S ____ (2014)
















11 Cite as 573 U S ____ (2014)
















13 Cite as 573 U S ____ (2014)












15 Cite as 573 U S ____ (2014)
















17 Cite as 573 U S ____ (2014)


APPENDIX7















9 Cite as 573 U S ____ (2014)
















11 Cite as 573 U S ____ (2014)
















13 Cite as 573 U S ____ (2014)












15 Cite as 573 U S ____ (2014)
















17 Cite as 573 U S ____ (2014)


APPENDIX7














11 Cite as 573 U S ____ (2014)
















13 Cite as 573 U S ____ (2014)












15 Cite as 573 U S ____ (2014)
















17 Cite as 573 U S ____ (2014)


APPENDIX7
















13 Cite as 573 U S ____ (2014)












15 Cite as 573 U S ____ (2014)
















17 Cite as 573 U S ____ (2014)


APPENDIX7














15 Cite as 573 U S ____ (2014)
















17 Cite as 573 U S ____ (2014)


APPENDIX7


















17 Cite as 573 U S ____ (2014)


APPENDIX7









USCA Case #13-5368 Document #1501429 Filed: 07/08/2014 ...

Documents

Transcript of USCA Case #13-5368 Document #1501429 Filed: 07/08/2014 ...